General Teamsters Local 959

GENERAL TEAMSTERS LOCAL 959 743 General Teamsters Local 959, State of Alaska, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and Frontier Transporta- tion Company. Case 19-CB-3427 March 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On December 27, 1979, Administrative Law Judge Richard D. Taplitz issued the attached Deci- sion in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Ad- ministrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, General Team- sters Local 959, State of Alaska, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. The Board finds no basis in the record for the Administrative Law Judge's finding that a pickup truck involved in one of the incidents be- longed to Union Business Agent Cavett. However, our ultimate disposi- tion of this case is not affected by this finding. 248 NLRB No. 108 DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge: This case was heard at Fairbanks, Alaska, on August 7, 1979. The charge was filed on March 5, 1979, by Frontier Transportation Company, herein called the Company. The complaint and amended complaint, which issued respectively on April 18 and July 20, 1979, allege that General Teamsters Local 959, State of Alaska, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, violated Section 8(b)(1)(A) of the Na- tional Labor Relations Act, as amended. ISSUE The primary issue is whether the Union violated Sec- tion 8(b)(1)(A) of the Act by threatening to physically injure and to blackball from further employment employ- ees of the Company who worked during a strike called by the Union. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Union. Upon the entire record' of the case, and from my ob- servation of the witnessess and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company, an Alaska corporation with offices and places of business in Anchorage and Fairbanks, Alaska, is engaged in the business of trucking and freight transpor- tation. It transports commodities in interstate commerce and during the year immediately preceding issuance of complaint it derived in excess of $50,000 from such oper- ations or performed services valued in excess of $50,000 in the course and conduct thereof. The amended com- plaint alleges, the amended answer admits, and I find that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. THE ALLEGED UNFAIR LABOR PRACTICES A. The Incident at Prudhoe Bay 1. Factual findings The Union is engaged in an economic dispute with the Company. A collective-bargaining contract between the I The unopposed motion of the General Counsel to correct the tran- script of the record is hereby granted. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company with the Union expired in June 1978. The par- ties continued to follow the terms of that contract until December 1978. The Union struck and began picketing the Company's premises in Fairbanks, Alaska, on or about February 8, 1979.2 Some of the Company's employees, including Gerald L. Martin, refused to honor the picket line and continued to work. In mid-February 1979, Martin, who was a line driver for the Company at that time, was part of a three- truck convoy making a delivery for the Company at Halliberton Service Company in Prudhoe Bay, Alaska. Martin was a member of the Union. While the trucks were being unloaded, two union pickets circled the trucks with their picket signs. One of the pickets was Union Business Representative Timothy A. Sanderson. 3 The other was Donald Gross. While Martin was going to the back of his truck to check the unloading procedure, Business Representative Sanderson spoke to him. Sanderson said: "You god damn scab, you'll never work in the state of Alaska as a team- ster again." Martin replied: "I suppose I'll have an invita- tion to come before the E Board."4 Sanderson said: "You bet you will." A short time later Martin went into the truck of one of the other drivers, Jimmy Welsh. While he was sitting there Sanderson walked by the truck and told Martin: "There'll be a lot of people watching you, boy." 5 2. Conclusions With exceptions not applicable here, Section 7 of the Act gives employees the right to engage in concerted ac- tivities such as striking and picketing and the right to re- frain from such activities. Section 8(b)(1)(A) of the Act makes it an unfair labor practice for a union to restrain or coerce employees in the exercise of the rights guaran- teed them in Section 7. Martin was engaged in an activity protected by the Act when he refused to join the strike and refused to honor the Union's picket line. Sanderson, an admitted union agent, called Martin a scab and told him that he (Martin) would never work in the State of Alaska as a teamster again. Sanderson also told Martin that there would be a lot of people watching him. Sanderson's re- marks amounted to a threat to blackball Martin from em- 2 The Union admits in its amended answer that the picketing was spon- sored, sanctioned, and supported by it. I The answer admits and I find that Sanderson is an agent of the Union. 4 The "E" or executive board is the executive board of the Union. On June 5, 1979, the Union's advisory board expelled Martin from the Union and fined him $5,000. Martin appealed to the Union's executive board and appeared before that board on August 3, 1979. As of te date of the trial he had not been notified of the results of that appeal. These findings are based on the testimony of Martin. Sanderson testi- fied that he told Martin that he couldn't believe Martin was doing it; that he would personally see to it that Martin was invited to see the "E" board; and that he hoped they would kick Martin out of the Union. San- derson denied that he made the remarks attributed to him by Martin Gross testified that he heard Sanderson say that Sandersor, couldn't be- lieve Martin was doing this and he heard Martin talk abcut getting an invitation to go to the "E" board. Gross further averred that he only overheard part of the conversation before he walked away. Martin was a convincing witness and I believe him. Where the testimony of Sanderson and Gross conflicts with that of Martin, I credit Martin and do not credit Sanderson and Gross. ployment as a teamster in Alaska. That went far beyond any right the Union may have had to enforce union dis- cipline on its members. Sanderson's threat restrained and coerced Martin in the exercise of Martin's rights guaran- teed in Section 7 of the Act and therefore violated Sec- tion 8(b)(l)(A) of the Act. Hotel, Motel, Restaurant Em- ployees & Bartenders' International Union, Local No. 483 (Highlands Inn, Inc.), 227 NLRB 666 (1976). B. The Daughenbaugh Truck Yard Incident 1. Factual findings Roger Robertson is another line driver for the Compa- ny who worked during the strike. On February 25, 1979, Robertson drove his truck to Ivan Daughenbaugh's Truck Stop in Fairbanks, Alaska. His 5-year-old son was in the cab with him and his wife was in a pickup truck behind him. As he drove into the truckstop he was fol- lowed by a pickup truck with union member Harvey Pe- terson and Union Business Representative Mel Cavett in it. Robertson got out of his truck and went to Cavett's truck. Peterson rolled down the window and Robertson asked if he could help them. Peterson and Cavett were both sitting in the cab of the truck and both could hear what Robertson was saying. Peterson asked Robertson what he was doing driving a company truck and Robert- son replied that he was making a living. Peterson said that there were a lot of teamsters out of work because of Robertson. Robertson smelled liquor on Peterson's breath. Peterson said: "With a few broken bones, you wouldn't be able to drive that truck." Peterson also spoke about how expensive a shot through the radiator of the truck would be. At that point Robertson told Pe- terson that he could take his goddamn union and shove it up his ass. Peterson, who looked angry, got out of the pickup and approached Robertson. Shortly thereafter Cavett also got out of the truck and approached Robert- son. Robertson began to back up away from them. Peter- son turned to Cavett and said: "ain't this the son-of-bitch that lives in Rainbow Valley Trailer court in the pink and white trailer. Got a boy going to Barnett School." Cavett nodded his head. About that time Rich Daughen- baugh, the son of the owner of the truckstop, came out of the garage and approached the three men. Peterson said to Daughenbaugh: "What are you doing letting this scab in this shop?" Daughenbaugh replied that he was just trying to make a buck. Peterson turned to Robertson and told him that he better park that goddamn truck. Robertson walked into the shop with Daughenbaugh and Cavett and Peterson left. 7 6 The answer admits and I find that Cavett is an agent of the Union. 7 These findings are based on the testimony of Robertson. Daughen- baugh corroborated much of Robertson's testimony. Daughenbaugh testi- fied that he overheard Peterson telling Robertson that they would see to it that Robertson was replacing radiators in his truck. Daughenbaugh also testified that he overheard part of a conversation in which it was men- tioned that Robertson's home could be seen from the highway. He averred that when he first saw Cavett, Cavett was coming around the end of the pickup and that Cavett had already left the truck. Cavett testi- fied in substance that he was in Peterson's truck at the Daughenbaugh truck yard when the incident happened but that he did not get out of the truck, that Peterson did not talk to anyone while they were both sitting Continued GENERAL TEAMSTERS LOCAL 959 745 2. Conclusions Because Robertson was working during the strike, Pe- terson threatened to break his bones so that he couldn't drive a truck and threatened to shoot at his truck. In the context of those threats Peterson impliedly threatened to harm Robertson's family by saying that he knew where Robertson lived and where his son went to school. Cavett was with Peterson throughout the incident. He overheard everything that Peterson said and he nodded his head when Peterson spoke about knowing where Robertson lived and knowing that he had a son at a par- ticular school. Cavett's conduct constituted tacit approv- al of Peterson's threats. As the Board held in Local 918, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Tale-Lord Manufactur- ing Company, Inc.), 206 NLRB 382, 386 (1973): It is well settled that where picket line misconduct takes place in the presence of a union agent, and the agent does nothing to disavow such misconduct or discipline the offenders, the union assumes responsi- bility for such misconduct.' 4 1 Davis Wholesale Co., Inc., 1165 NLRB 264, fn. 11; Teamsters Local #115. International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America, Independent (F. J Lavino & Company), 157 NLRB 1637. I find that the Union was responsible for the threats to Robertson described above and that those threats violat- ed Section 8(bX)(l)(A) of the Act. C. The Sunset Strip Incident 1. Factual findings Fred McMillan was the Union's job steward at the Company's Fairbanks yard at the time that the strike began. The Union never revoked his status as steward or designated another steward. He honored the picket line when the strike began. As shop steward he was responsible for seeing to it that the terms of the contract were honored and he spoke on behalf of the Union when employees had prob- lems with management. The expired collective-bargain- ing agreement provided that the Union was to have a shop steward at the Fairbanks facility. One evening shortly after the strike began on Febru- ary 8, 1979, McMillan was sitting at a bar in the Sunset Strip Restaurant in Fairbanks, Alaska, when he was joined by Company Yard Foreman Kenneth Payne, Company Line Driver Joe Harris, and Shop Foreman Leroy Dennis. 8 Harris, Dennis, and Payne had crossed in the truck. and that all he knew was that Peterson got out of the truck and spoke to someone I credit Robertson and I do not credit Cavett ' As a line driver, Harris was an employee within the meaning of the Act. Payne testified that as a yard foreman he coordinates the loads coming in and out of the yard but that he does not hire, fire, or discipline employees or recommend such action. He spends a substantial amount of his time as a yardman. I find that he is an employee within the meaning of the Act. There was no testimony concerning the duties of Shop Fore- man Leroy Dennis. However, in the circumstances of this case the status as an employee or supervisor of McMillan and Dennis is not significant. A threat to a supervisor in the presence of an employee can be a viola- the picket line in order to work while McMillan had honored the picket line. In the conversation that fol- lowed, McMillan told Payne and Harris that they better be careful because they had crossed the picket line at an- other employer's premises (KAPS) the previous summer and they were then crossing the Company's picket line. McMillan told them that the Union had their number, and they were going to get hurt by teamsters from the outside. He said that the people who had gone out on strike were not going to hurt them but that outsiders would and that he was telling them as a friend. He also told Payne that Payne would not be employed with the Company much longer.9 2. Conclusions McMillan was a union shop steward at the time of this incident. He had been appointed shop steward by the Union and that appointment had not been revoked. McMillan warned Payne and Harris that because they crossed picket lines the Union had their number and they were going to get hurt by outside teamsters. Whether or not he thought he was giving them friendly advice, McMillan's statement was a warning that coerced em- ployees in the exercise of their right to continue work- ing. As found above, Union Business Representatives San- derson and Cavett were responsible for various threats to employees. Both were admitted agents of the Union. Shop steward McMillian's warning to Payne and Harris was wholly consistent with the conduct of those two business agents. McMillan was in substance continuing a pattern of conduct established by those union business representatives. He was acting within the scope of his general authority as shop steward and was therefore the Union's agent.'0 In addition, when the Union appointed McMillan as shop steward, it held him out to be the em- ployees' proper link of communication between it and the employees. The Union's action led the employees to reasonably believe that the shop steward had authority lion of Sec. 8(b)(l)(A) of the Act. Teamsters Local 918 (Tale-Lord Manu- facturing Company), supra. Here McMillan's remarks were in the presence of employee Harris 9 These findings are based on the testimony of Payne. McMillan testi- fied that he told Dennis, Harris, and Payne that if they crossed the picket line they would be on the bad list with the Union and that they would end up before the executive board. He averred that he told them that they would not have a problem with the pickets on his shift, but if they crossed the picket line he would have to turn them in and they would be brought before the executive board. He denied that he told them they would be hurt by outside teamsters or that they would no longer work at the Company. I credit Payne and do not credit McMillan. 0 As the Board held in International Longshoremans and Warehouse- men-s Union, CIO (Sunset Line and Twine Company). 79 NLRB 1487 A principal may be responsible for the act of his agent within the scope of the agent's general authority or the "scope of his employ- ment" if the agent is a servant, even though the principal has not specifically authorized or indeed may have specifically forbidden the act in question It is enough if the principal actually empowered the agent to represent him in the general area within which the agent acted See also International Brotherhood of Teamsters, General Drivers. Chauf- feurs and Helpers Local Union No. 886 (Lee Way Motor Freight, Inc.), 229 NLRB 832 (1977); Local 761. International Union of Electrical. Radio and Machine Workers, AFL-CIO (General Electric Company), 126 NLRB 123, 125. enfd 287 F.2d 565 (6th Cir 1961) 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to speak for the Union. As the Union cloaked McMillan with the apparent authority to act on its behalf, the Union is responsible for McMillan's warning to the em- ployees. I find that the Union, through McMillan, vio- lated Section 8(b)(l)(A) by warning employees Payne and Harris that the Union had their number and that they would be hurt by outside teamsters because they crossed picket lines. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Union, set forth in section III, above, occurring in connection with the business oper- ations of the Company described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening, and ob- structing commerce and the free flow of commerce. V. THE REMEDY Having found that the Union has engaged in certain unfair labor practices prohibited by Section 8(b)(l)(A) of the Act, I recommend that it be ordered to cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. CONCLUSIONS OF LAW I. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 2. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. The Union restrained and coerced employees in the exercise of the rights guaranteed them in Section 7 of the Act, in violation of Section 8(b)(1)(A) of the A.ct by: (a) Threatening to blackball Gerald Martin. from em- ployment in Alaska because Martin refused to strike or honor the Union's picket line. (b) Threatening Roger Robertson and his family with physical injury and threatening to shoot at his truck be- cause Robertson refused to strike or honor the Union's picket line. (c) Warning Kenneth Payne and Joe Harris that the Union had their number and that they would be hurt by outside teamsters because they crossed a picket line. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER l 2 The Respondent, General Teamsters Local 959, State of Alaska, affiliated with the International Brotherhood ' Teamsters Local 866 (Lee Way Motor Freight, Inc.). supra, at 833; United Brotherhood of Carpenters & Joiners of America, Local Union No. 2067, AFL-CIO, et al. (Associated General Contractors of America, Inc.), 166 NLRB 532, 539-540 (1967). 12 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and respresentatives, shall: 1. Cease and desist from: (a) Threatening to blackball any emloyee of Frontier Transportation Company from employment in Alaska be- cause that employee refuses to strike or honor that Union's picket line. (b) Threatening any employee of Frontier Transporta- tion Company or the family of such an employee with physical injury because that employee refuses to strike or honor said Union's picket line. (c) Threatening to shoot at the truck of any employee of Frontier Transportation Company because that em- ployee refuses to strike or honor said Union's picket line. (d) Warning any employee of Frontier Transportation Company that said Union had his number or that he will be hurt by outside teamsters because he crossed a picket line. (e) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Post at it business office and meeting halls copies of the attached notice marked "Appendix."' 3 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by it authorized rep- resentative, shall be posted by it immediately upon re- ceipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish said Regional Director with signed copies of the aforesaid notice for posting by Frontier Transpor- tation Company, if that company is willing to post them. (c) Notify said Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. is In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to blackball any employ- ee of Frontier Transportation Company from em- ployment in Alaska because that employee refuses to strike or honor our picket line. WE WILL NOT threaten any employee of Frontier Transportation Company or the family of such an --- -- - GENERAL TEAMSTERS LOCAL 959 747 employee with physical injury because that employ- ee refuses to strike or honor our picket line. WE WILL NOT threaten to shoot at the truck of any employees of Frontier Transportation Company because that employee refuses to strike or honor our picket line. WE WILL NOT warn any employee of Frontier Transportation Company that we have his number or that he will be hurt by outside teamsters because he crossed a picket line. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act. GENERAL TEAMSTERS LOCAL 959, STATE OF ALASKA, AFFILIATED WITH THE IN- TERNATIONAL. BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA.